CLARK ET Ux. V. GILBERT

CLARK ET ux. v. GILBERT.

torts, when there is no proof of carelessness or wrong intent. And even within these narrow limits, the conflict of authority as to the extent of the application of the maxim would suggest extreme caution in regard to placing much reliance' upon it. So that upon the whole, we may safely conclude that those consequences which the law treats as too remote for consideration in estimating damages, must be such as the defendant had no just ground to expect would flow from his act-in other words-such as were, upon the basis of his knowledge, rather accidental than natural, or ordinary. We shall not be expected to discuss the much vexed question, what amounts to an accident, or what damages are natural and what accidental. The term, with reference to accident policies, has been defined as "any event which takes place without the foresight or expectation of the person acted upon, or affected by the event :" WITHEY, J., in Ripley v. By. PassengerAssurance Co., 2 Bigelow Ins. Cas. 738 ; ProvidenceLife is. Co. v. Martin, 32 Md. 310. The cases are considerably numerous where this de- finition is substantially confirmed. And as it so nearly coincides with the rule before stated, we shall not say more, trusting that we have sufficiently removed any ground of misapprehending what we before said upon the force and application of the maxim. I. F. R.

RECENT AMERICAN DECISIONS. 3upreme Court of -Errorsof Connecticut.

CLARK AND WIFE v. GILBERT. A married woman to whom possession of land is delivered under a parol gift, and who occupies the land uninterruptedly, adversely and exclusively as her own for fifteen years, thereby acquires a complete title in herself, subject to an estate by eurtesy in her husband, where the husband, although living with her, claims no independent, exclusive occupation in himself. Possession taken under a parol gift is adverse in the donee against the donor, andif continued for fifteen years perfects the title of the donee as against the donor. The donor in such case not only knows that the possession is adverse, but intends it to be so, and there is no occasion for any notoriety. Notoriety is only important where the adverse character of the possession is to be brought home to the owner by presumption. BILL in equity, praying for a decree vesting the title to certain land in Jane E. Clark, one of the petitioners; brought to the Su- I Mr. Hooyh, the reporter, will accept our thanks for this case, and some others. EDS. Am. LAW. REG. CLARK ET ux. v. GILBERT. perior Court in Middlesex county, and reserved for advice on facts found by the court. The case is sufficiently stated in the opinion. Tyler and Culver, for the petitioners. Chadwick and i. . Robinson, for the respondent. BUTLER, 0. J.-The mitterial facts on which this case rests, ex- tracted from the findings, are as follows:- Henry W. Gilbert, the uncle of the petitioner, Jane E. Clark, desired that Mrs. Clark and her husband, who then resided in Meriden, should remove to Chester, that he might enjoy her society. In the year 1850, to induce them to leave Meriden and remove to Chester, the said Gilbert promised that, if they would abandon business in Meriden and so remove, lie would set the husband, Linus Clark, up in business, and build a house for his wife. They (lid so remove, and pursuant to his promises said Gilbert put said Linus in possession of a factory and business, and commenced making arrangements to build a house for his wife. At that time iewas the owner of the house in question, but it was then occupied by one Hlenshaw. Ithnshaw soon left and removed from the state, and the said Gilbert then abandoned the idea of building, and gave the key of the dwelling-house in question to his said niece, Mrs. Clark, saying to her, "There is a house foi -you; 'it is a comfortable place, and I think you will be pleased with it. It is convenient for keeping a cow, and boarding your husband's workmen. The place is yours. You can make such improvements and alterations in it as you please." The said Jane with her husband thereupon took possession of the premises, and continued in possession for about twenty years. Said Gilbert left the country in 1852, giving said Jane to understand, when the place was alluded to between the time when she took possession and the time of his leaving, that the place was hers, and he did not thereafter, at any time before the bringing of this bill, say or do, or authorize to be said or done, anything inconsistent with that idea. The petitioner, Jane E. Clark, from the time that she and her husband went into possession of the place in 1850, occupied the premises as her own until 1870, paid a mechanic's lien which existed thereon, and paid for changes in and improvements thereon, and, so far as a feme covert living on premises with her husband can occupy, did so exclusively and uninterruptedly, except as follows. The said Ilenry W. Gilbert had other property in the state, and when he left in CLARK ET ux. v. GILBERT.

1852, gave the respondent a general power of attorney, and the respondent in 1855 gave by lease to Henshaw the privilege of dig- ging a well, and laying a pipe on said demanded premises, of which said Linus had knowledge, but said Jane had not. The respondent also, as agent of Henry W. Gilbert, paid the taxes on the demanded premises front 1851 to 1857, but not thereafter until he levied an execution thereon. No other acts inconsistent with the title or possession of the petitioners during fifteen years next following the commencement of their occupation appear in the findings. The respondent in 1868 brought a suit in the Superior Court against Henry W. Gilbert, obtained judgment by default, took out execution and levied it on the demanded premises as the property of H. W. Gilbert, and thereupon brought his action of ejectment against the petitioner, Linus Clark. On the trial of that case said Linus set up in defence the title in his wife by gift as aforesaid, and also a legal title in himself by adverse possession. The respondent thereupon offered evidence of admissions of said Linus inconsistent with an adverse possession in himself, but the petitioner, Jane E. Clark, had no knowledge of any acts or admissions of said Linus inconsistent with her title and possession, and it did not appear that said Linus did any act, or made any admission, inconsistent with her title and possession, or his own, within fifteen years next following the commencement of her occupation, or did any act, or made any declaration, indicative of a claim of exclusive title or possession in himself, at any time before the attachment and levy. The respondent obtained judgment in his action of ejectment, and removed the petitioners from the premises, and they thereupon brought this petition. On these facts are the petitioners, or either of them, entitled to relief? I think Jane E. Clark is. In the first place, I think on principle that a married woman can under circumstances like these, perfect a parol gift of real estate by an uninterrupted possession of fifteen years, where the husband, although living with her, claims no independent, exclusive occupation in himself. Why should it not be so ? The law does not vest him with any title or possession until the wife has acquired a title, and he had no legal right of possession therefore in this case during the fifteen years. It does not appear that he claimed during that period, or individually exercised, any right or possession in himself, and the court find that the possession was CLARK ET ux. v. GILBERT.

hers, if, as a married woman, she could legally possess. I see no reason why she cannot possess under such circumstances, nor why, having been put in possession individually by a gift, the possession may not properly be considered as continuedly hers, the husband making no claim to it. She certainly can have possession, and -maintain it, where property is given to her for her sole and separate use, even as against h(r husband. And so she may, as against donor or husband, of person-l property given for her separate use. I shall inquire hereafter whether this was so given, but on this point it is immaterial. If she can hold a possession when put in, and where the husband does not claim adversely to her, or interfere with it, the finding of the court establishes her possession in this case. As a legal proposition I think it clear .that she may possess under such circumstances as are found here. Much has been said about an open, notorious possession, but such expressions are not applicable to a case like this. Possession taken under a parol gift is adverse in the donee against the donor, and if continued for fifteen years perfects the title of the donee as against the donor. The donor in such cases not only knows that the possession is adverse, but intends it to be, and there is no occasion for any notoriety. Notoriety is only important where the adverse character of the possession is t o be brought home to the owner by presumption. Of course where it is shown that lie had actual knowledge that the possession was under claim of a title, and therefore adverse, openness and notoriety are unimportant, for no other person has any legal interest in the question, or right to be informed by notoriety or otherwise. So long as Henry W. Gilbert knew that his niece was holding the premises as her own, under a gift from him, and would acquire a complete title at the end of fifteen years, she was not bound to make claim of right, or proclaim the character of her possession, until it was denied by him, or some agent of his authorized to make the denial. No act or declaration of his or of his agent came to her knowledge which required her to speak. I think there can be no doubt therefore that there was a gift to her, and possession delivered her pursuant to the gift ; that possession was continued adversely for more than fifteen years, and that neither the husband nor the donor, nor any authorized agent of his, so interrupted or disturbed that possession as to prevent the acquisition by her of a complete title. The act of authorizing a well to be dug and pipes to be laid in the land is CLARK zT ux. v. GILBERT. of little importance. It was the act of an agent who had no special authority to interfere with the possession of this property, and certainly a general authority, upon the facts found, would not authorize it. The same may be said in respect to -the taxes. As there was no conveyance of the property on record the assessors naturally continued to put it into the list of H. W. Gilbert, and the taxes were paid by his agent. The fact that he soon discon- tinued paying the taxes is a much more significant fact for the petitioner. This view of the principles involved is sustained by all the decisions involving the questions which have been found. The gei:cr' principle that a husband, occupying the property of the wife with her or solely, is presumed to be occupying in subordination to her title, is generally recognised. See 2 Selden 342, and cases there cited. There have been two cases analogous to this decided in our sister states during the last ten years. The first was the case of Steel v. Johason, 4 Allen 425, decided in 1862. In that case, the father gave to his daughter, who was a married woman, some real estate, and put her in possession of it, and she continued to hold possession for more than twenty years, and it was holden that by opera- tion of law she thereby became vested with a complete title to the estate, which neither the father nor his grantees during his life, nor his heirs at law after his death, could successfully contest. Another analogous case which arose in New Jersey and was decided in 1867, was that of Outealt v. Ludlow, 32 N. J. 239. In that case a father gave a house and lot to a married daughter, and -put her and her husband in possession, and they occupied until the Statute of Limitation had run against the father. Upon the question, whether she or her husband was entitled to claim title acquired by. such possession, it was holden, first, that a possession so entered into in right of the wife could nat be taken advan- tage of by the husband to the prejudice of his wife, for his possession was only through her, and he could not by any act of his own against hig wife, change it into a possession adverse to her. Second, that if she was.permitted by the father to hold possession of the property as hers, and by lapse of time such adverse possession - ripened into a title, that title was hers. In that case possession was delivered to the husband as well as the wife, but in this case possession was delivered to the wife alone, and it does not appear CLARK ET UX. v. GILBERT. that during the fifteen years next thereafter Mr. Clark claimed any legal possession, nor indeed does it appear that he claimed any distinct possession at all, until be set it up as a contingent alternative in the ejectment suit. These two decisions are recent, are in harmony with the prd- gressive thought and legislation of the day, and cover the whole ground. For whether the wife alone in this case is deemed to have been in possession, as in the case in Allen, or whether they are both to be deemed to have been in possession, or the husband to have held the possession in her right, as in the case in New Jersey, her parol gift must be considered as having ripened into a perfect title by lapse of time, if these decisions are correct exposi- tions of the law. We think they are entitled to great respect, that they are founded upon correct principles, and characterized by good sense, and that in this case a perfect title was acquired by Mrs. Clark against Henry W. Gilbert, the donor, after a lapse of fifteen years from the time of the gift and the taking of possession under it, and before the attachment and levy of the respondent. But several other questions arise in the case. First, did the husband become tenant by the curtesy when the title became perfect in her? Second, if so, what effect is the judgment of Alex- ander Gilbert against Linus Clark in ejectment to have in relation to the decree ? It is undoubtedly a general rule that the husband becomes tenant by the curtesy in any estate which accrues to the wife during coverture, unless given in trust, or given to her for her sole and separate use. There is no trust here, nor is it clear that the donor intended it for her sole and separate use. Assuming then that Linus Clark took a life-estate by the curtesy, what bearing has that judgment upon the case? Alexander Gilbert obtained no.title by his attachment and levy, for a complete title had then vested in Jane E. Clark, and as incident thereto an estate by curtesy in her husband. The judgment therefore is without foundation and erroneous, but it stands unreversed against Linus Clark, and as to him determines all right of possession in this property, and has been consummated by the dispossession of both the petitioners. It is inoperative against Jane E. Clark, for she was not a party to it, and she is entitled to a decree to establish her title, subject to the tenancy of her husband. But Linus Clark cannot impeach that CLARK CT ux. v. GILBERT.

j-,dgment in this proceeding except upon the ground of fraud, and that is not found. We can advise no decree therefore which will restore him to his title or possession, for- that and another reason. It appears by the finding that he distinctly claimed a righlt to the possession on the facts in the case by virtue of a title in his wife, and that the claim was overruled. That ruling was erroneous on the facts as they appear of record in that case, and furnishes a sufficient ground for reversing the judgment. And as his right to a writ of error is not barred, he has adequate remedy at law. In this opinion the other judges concurred.

The foregoing case presents two prac- the land in his own right against all the tical questions in regard to the effect of world and if, after this becomes known adverse possession upon the title to land, to the owner of the land, such possession which it is of the utmost importance to continues long enough to bar the right American lawyers clearly to understand. of entry, the title will be vested in the 1. The precise point of time, When a possessor : 1Jillison v. Watkins, 3 Pet. possession of land, taken by consent of U. S. 43 : Greene v. fnson, 9 Vt. 37; the owner, may become adverse to such Hall v. Davis, 10 Vt. 593. owner, and the effect of the continuance But upon the assumption that the of such possession, in transferring the possession continues as it began, under title to the party in possession. Certain contract between the owner of the land general principles, incidentally affecting and the party in possession, its effect these questions, are well understood and will be to confirm the contract under conceded by all; as that one in posses- which the entry was made and contin- sion of land acknowledging the title of ued. If the possessor enters under a another to such land cannot resist the parol gift his continued possession is hut title of such other or acquire his title, confirming such gift, until the period of without his knowledge and consent, the Statute of Limitations has expired, however long the possession may con- when the title will become perfected in tinue. From these axiomatic proposi- the donee, notwithstanding at the time tions some have assumed, that no title of his entry and during the whole period could be acquired by a possession, of his occupancy he may have recognised whose inception proceeded from anytrust the title of the donor. In such a case between the parties, whether express or all the elements of adverse possession implied. But there is no foundation for concur ; the donee claims to hold the the assumption to that extent. The only land in his own right, and the dIonor proposition maintainable upon this point acquiesces in the justice of such claim. is, that a possession beginning in trust or The case is stronger than where the by the consent of the owner of the land, party enters by strict and forcible dis- will never transfer the title to the land seisin, for there the owner of the land to ihe party in possession, except in con- does not acquiesce in the claim of title formity to the trust or contract, so long by the possessor: Sumner v. Stephens, 6 as the possessor continues to recognise Met. (Mass.) 337, opinion of SHAw, the trust and to hold under it. Ile may Ch. J., commented upon ante, 12 Am. renounce the contract and claim to hold Law Reg. N. S. 276. So also where CLARK ET ux. v. GILBERT. land is bonght and the price paid, but contract, vest the title in him. That no deed executed ; if tile purchaser enter has been his claim and the concession and continue to hold the land it will of the former owner, during the entire enure to his benefit as an adverse hold- period of the Statute of Limitations, and ing, and the title be perfected after the that is all there is in any case of title lapse of the period of the statute: Brown acquired under the statute. There is, v. Kinq, 5 Met. (Mass.) 173; Ellison no doubt, under this view of the ques- v. Cathcarl, I Me'Mullan (S. C.) 5. So tion, the possibility that some anomalies tco if the land is contracted to le sold may occur, not contemplated in other and the terms of payment fixed, although cases, under this branch of the law. the price is not fully paid ; if possession The period for payments under the con- is given under tie contract, the purcha- tract may extend beyond the term of the ser, although holding under the contract Statute of Limitations, and in such cases and to that extent by the permission of no title could become perfected in the the seller and acknowledging, to the purchaser until his contract was per- fullest extent, the title as being in formed. This is his claim, and this the the seller, must nevertheless Ie consi- ground of acquiescence on the other dered as holding in his own right and part. But in this there is nothing which under a claim of title, so long as lie need deter us from adopting the rule. performs the contract of putchase on his This is but the ordinary condition of all part. lie is not, in any proper sense, possessory titles and of perfected titles tenant of the land to any one, or in any acquired by possession. The title ac- form, and if the contract is in writing, quired is according to the claim of the as, under the Statute of Frauds it must possessor and the acquiescence of the be. to be of any force, the purchaser, so holder of the title. One may lie in pos- long as he performs the contract on his session of land, for the term of the statute, part, cannot be evicted from the posses- claiming the right to hold the land sion by the seller. A court of equity against all the world, and still not ac- will enjoin such a suit. It is only when quire title in fee. His title will be ac- the purchaser fuils to perform the con- cording to the nature of hiis claim, tract on his part, that he becomes a whether as tenant in fee or for life or tenant at sufferance, and liable to evic- years or only at will, or by sufferance. tion. The possession of the purchaser 2. This proposition, is well illustrated may not Ile adverse to the seller, in the by the next point in the case. Where sense of depriving him of his remedy husband and wife live upon land in the under the contract, so long as the pur- ordinary mode, the law interprets the chaser claims undler the contract (and of possession as that of the husband, as course claims nothing beyond it), and the indeed it must, so long as lie is regarded acquiescence of tile seller is only to the as the head and director of the affair extent of the contract, as held in Woods of the family. But the title acquired by v. Dille, It Ohio 455. But where the such holding of the husband may entire purchaser fully performs the contract on for the benefit of the wife and will do so, his part, we cannot comprehend why his if the husband's claim of title was it the possession unuder claim of title in him- right of the wife. There is no more in- self against all the world, must not date consistency in allowing the contract or from tile time of entering upon the land claim to define the character of the pos- under the contract, and thus, after the session in one particular than in another. lapse of the full term of tile Statute of The extent of possession is always defined Limitations and the performance of the by the contract under which possession PITCH v. GATES. is held. Without reference to any deed enclosed, or of the whole tract ; but also or contract affecting the land, the posses- the character of the possession, whether sion will be limited to the actual occu- in right of the occupant or of another, pancy, possessio pedis. So too the and equally of what particular title, possession of land, in general, indicates more or less, the possession is to be claim of ownership in fee, since that trelted as the exponent. The decision Nsthe more common way in which ocen- seems unquestionable upon both points, jants of land in this country hold it. and we hope we have been able to show lut the deed, or contract, or claim, of their importance in the different applica- .he occupant must be referred to, not tions which may be made of the princi- only to determine the extent of the pos- ples involved. session, whether it be only of the piece I. F. R.

Supreme Court of .Errors of Connecticut. FITCH v. GATES. A non-negotiable note payable on demand was executed to F. by the defendant. Fourteen years later the note was transferred and delivered by F. to the plaintiff tn part payment of a debt, and the plaintiff brought suit in his own name thereon under the statute authorizing a suit so to be brought. At the time the plaintiff took the note of F. the defendant had for several years had a claim on book against F. greater than the note. The plaintiff knew this and had shortly before been present at a meeting of F. and the defendant at which they had attempted to adjust their mutual claims, and at which F. had told him that lie intended to apply the note in part payment of his indebtedness to the defendant. HIe also knew that the defendant expected such application to be made. The application however was not actually made at the time, the parties separating without having agreed as to the exact balance due. Whether the defendant could set off his claim against the note in-the suit: Qucere. The authorities both English and American are in conflict and confusion upon the point. Whether or not such set-off could be made in an ordinary case, yet here the plaintiff must be regarded as having taken the note with full knowledge of an understanding of the parties that it should be applied upon the book account of the plaintiff, and therefore as having taken it subject to the right of the defendant to make the set-off. It was not found in terms that F. was insolvent at the time the set-off was sought to be made, but it appeared that the defendant had obtained judgment against F. more than a year before for the amount, that the debt had then been of several years' standing, and that the execution obtained upon the judgment had never been collected. Held, that it might reasonably be inferred that F. had not the means of payment or that they were beyond the reach of legal process.

ASSUMPSIT by the plaintiff as assignee of a non-negotiable note, against the maker; brought to the Court of Common Pleas of New London county, and tried on the general issue, with notice of a set-off, closed to the court. The court found the facts and FITCH v. GATES.

reserved the case for the advice of this court. The facts are fully stated in the opinion. -Prattand Thresher, for the plaintiff, cited TFleeler v. Raymond, 5 Cowen 231 ; Raymond v. Wheeler, 9 Id. 295, 800; Johnson v.. Drihtqe, 6 Id. 693; Bridge v. Johnson, 5 Wend. 842; Gunn v., Seovil, 5 Day 113; ic.Lean v. SicLean, 1 Conn. 397 ; Palmer v. Green, 6 Id. 24; Francisv. Rand, 7 Id. 221 ; Pitkin v. Pitkin, 8 1I. 325; Savings Bank v. Bates, Id. 505; Robinson v. Lyman, 10 Id. 30; Starkey v. Peters, 18 Id. 181; Eastern Bank v. Capron, 22 Id. 639; Nichols v. Dayton, 34 Id. 65; Bishop v. .Fowler, 35 Id. 5; 1 Swift Dig. 434, 713 ; Holland v. lMakepeace, 8 Mass. 418 ; Grew v. Burditt, 9 Pick. 265; Chandler v. Drew, 6 N. lainp. 469; MeDuffie v. Dame, 11 Id. 244; Adams v. Bliss, 16 Verm. 39; Robinson v. Breedlove, 7 Port. 541; Cum- berland Bank v. Rand, 3 Harr. 222; Giregg v. James, Breese 107; Beals v. Cuernsey, 8 Johns. 446, 452; Jfrickhamr v. Hiller, 12 Id. 320, 823; Burroughs v. Moss, 10 Barn. & Cress. 558. Lucas, with whom was Park, for the defendant, cited Gen. Statutes, p. 24, see. 109; 1 Parsons on Cont. (5th ed.) 230; Robinson v. Lyman, 10 Conn. 30; Babcock v. Callender, 17 Id. 34; Benjamin v. Benjamin, Id. 110; Ripley v. Bull, 19 Id. 53; Adams v. Leavens, 20 Id. 73; Peaboc7, v. Peters, 5 Pick. 1; Thomas v. Lewis, 9 Id. 867; Baxter v. Little, 6 Met. 7; Bond v. Fitzpatrick, 4 Gray 91; Sanborn v. little, 3 N. llamp. 539; Shapley v. Bellows, 4 Id. 347 ; M42yers v. Davis, 22 N. York 489 ; Brashear v. TWest, 7 Peters 608; Chitty on Cont. 138, and note m ; Waterman on Set-off 113, 114, 116, 125, 130, and notes. FOSTER, J.-A note for $88.74, payable to John Fitch, on demand, with interest, was given him by the defendant on the 21st of February 1853. On the 26th of August 1867, this note was transferred and delivered to the plaintiff, by the payee, in part payment of a debt due from the payee to the plaintiff. This suit is brought by the plaintiff in his own name, by virtue of the provisions of our statute of 1864, authorizing the assignee and equitable and bond fide owner of any chose in action, not by law negotiable, this to sue. The facts are found by the Court of Common Pleas, and the case is reserved for the advice of this court as to what judgment shall be rendered. In addition to the fact that the plaintiff took this note when FITCH v. GATES. more than fourteen years overdue, it appears that he took it with knowledge that the defendant, the maker of the note, had a claim on book against John Fitch, the payee, and for several years had had such claim, greater in amount than the amourit of the note. The plaintiff had been present on two several occasions when John Fitch and the lefendant were together for the purpose of settling up all accounts and demands subsisting between them. The last of these meetings was at the plaintiff's house, and he was told by John Fitch that he intended to apply this note, and other noteE held by him against the defendant, to liquidate or set off his indebtedness on book. The plaintiff also knew that the defendant understood and expected that the balance due him on book was tc be applied to pay the note, but the parties separated without agree- ing as to the exact balance so due, and without actually applying it upon the note. Very soon after, this note was assigned to the plaintiff, and on the defendant's refusal to pay it, which was immediately after payment was demanded, this suit was commenced. The defendant subsequently prosecuted his claim against John Fitch to final judgment, and now holds an execution against him for $250 damages, and $49.08 costs, dated the 22d of June 1871, which he seeks to set off against this note; denying also that the plaintiff is the equitable and bondfide holder of the same. The plaintiff insists that he is the bondfide holder, and that he is not liable to such set-off. The question of set-off must be determined by our statute, which is a transcript of the English statute of 2d George I. Various points in the law of set-off have frequently been discussed and decided in this court. Most of the cases are collected in a note to .Ripley v. Bull, 19 Conn. 58, 2d ed. We have regarded the decision of the English courts as authorities ; our statute upon this subject and theirs being similar, and in some clauses identical. In the earlier cases the courts in Eng- land gave the statute a liberal construction, regarding it as a reme- dial one, and thus protected almost every description of equitable interest, even against the claims of assignees, endorsees, &c. 'The sphere of the influence of this statute seems gradually to have been contracting, and the later cases certainly tend to restrict its application solely to claims between the parties on the record. The cases of Bottomley v. Brooke, 1 T. R. 621; Budge v. Birch, 1 T. R. 622; Brown v. .Davis, 8 T. R. 80, with others which might FITCH v. GATES. be quoted, decided in the latter part of the last century, and in the beginning of this, are examples of the former class of these cases : Burrough v. Moss, 10 3. & C. 558 (21 E. C. L. 128); Isberg v. Bowen, 8 Exch. 52, and Oulds v. Harrison, 10 Exch. 572, are examples of the latter class of cases. Several of the earlier cases have been distinctly overruled; indeed Baron PARKE in Isberg v. Bowen, 8 Exch. 52, says "they may be considered exploded." The case of Burrough v. Moss, 10 B. & C. 558, was quoted by this court with approbation in Bobinson v. Lyman, 10 Conn. 80, and seems to have had a controlling influence in its decision, for PETERS, J., said he thought the law was otherwise till he saw that case. The case of Isberg v. Bowen seems to restrict the application of the statute to mutual, legal debts between the parties of record. The action was for freight, due under a charter-party. Plea, that the plaintiff entered into the charter-party as master of the ship, for and on behalf of and as agent for the owner, that the plaintiff bad no beneficial interest in the charter, or any lien on the freight, and. that he brought the action solely as agent and trustee for the owner, who was indebted to the defendant in a certain amount, which the defendant offered to set-off. This plea was held insufficient on demurrer ; the Court of Exchequer deciding that "the statute of set-off did not apply." Baron MARTIN in. giving the opinion of the court, said, " The statute enacts that ' where there are mutual debts between the plaintiff and the defendant, one debt may be set against the other.' This is the whole enactment as applicable to the present case, and upon its true construction the question de- pends. If the words of the statute had been, that where there were mutual debts, the one might be set against the other, the argument for the defendant would have had more weight; but these are not the only words, for the debts are to be mutual debts between the plaintiff and defendant,- and there is no debt here due from the plaintiff at all; and except the words, ' between the plaintiff and the defendant,' can be excluded, the plea cannot be maintained. * * * Looking at the plain words of the statute, we best give effect to the true rule now adopted by all the courts at West- minster for its construction, by holding that inasmuch as ihe debts are not mutual debts, between the plaintiff and the defendant, the one cannot be set off against the other." This case was decided in 1853; that of BorroVq v. 11foss in 1880. A still more recent case is that of Oidds v. Harrison,which certainly goes a very ex- FITCH v. GATES. treme length. It was an. action brought by an endorsee of a bill of exchange, o'erdue, against the acceptor. The defendant pleaded that after the bill became due, and before endorsement, the drawer was indebted to the defendant in a sum exceeding' the amount of the bill; and that the drawer, in order to defraud the defendant, and in collusion with the plaintiff, endorsed thebill to the plaintiff after it became due, without consideration, in order to enable him to sue the defendant on it, and that the plaintiff sued merely as the agent of the drawer, and in collusion with him, and that the sum due from the drawer to the defendant had not been paid. On demurrer to this plea the court held it no answer to the action, and gave judgment for the plaintiff. Turning from the English to the American cases, and going no farther than to the state of New York and to our sister states of New England, we find a great want of harmony in the decisions upon this subject. The statutes of some of these states, particu- larly of Rhode Island and Vermont, contain some provisions of a peculiar character; hence, decisions in those states will not be of equal authority, outside their several jurisdictions, as if their statutes were similar to our own. Such is the case of Trafford v. Hall, 7 R. I. 104, and Adams v. Bliss, 16 Verm. 89, both of which seem to have been fully examined and carefully considered. The statutes of New York, Massachusetts, New Hampshire and Maine, are substantially like our own; but the decisions of their courts, upon matters of set-off, differ widely from each other, and there is, notoinfrequently, a direct conflict between those of the same state. The early decisions in the state of New York favored very strongly the claim of set-off: Furman v. Haskins, 2 Caines 368; O' Callaghan v. Sawyer, 5 Johns. 118; and Ford v. Stewart, 19 Johns. 342, are examples. In O'Callaghanv. Sawyer the action was brought by the endorsee of an overdue promissory note against the maker. The defendant claimed to! set off a debt due him from the payee and endorser. In the Common Pleas the set-off was denied, but in the Supreme Court the judgment was reversed. The court say :-" The set-off ought to have been received. The note had long been due and dishonored when it was endorsed, and the point has been too long settled and too repeatedly recognised to require any discussion now, that th~e endorsee takes the note subject to all the equity and to every defence which existed against it in the hands of the original payee." This was in 1809, and nearly FITCH v. GATES.

twenty years after the same court, in the case of Jolnson v. Bridge, 6 Cowen 693, overruled this decision, and others of like character, laying down as law that there could be no set-off except as against the plaintiff on the record. This case went to the Court of Errors, and is reported in 5 Wend. 342. On the question, " Shall this decision be reversed ?" the court stood twelve to twelve; so it was affirmed. Had the rules of the court permitted the question to have been put in the opposite form, "Shall this decision be affirmed ?" of course it would have been reversed. In a subsequent ease, Driggs v. Rockwell, 11 Wend. 504, the Court of Errors reversed the decision of the Supreme Court which had rejected the set-off, on the ground that it was not admissible except as against the party to the record. The Chancellor, in giving the opinion of the court on reversal, says: "In the case of a promissory note transferred after due, and thus dishonored on its face, and where according to well settled and indisputable authorities it is taken wholly on the credit of the assignor, I would not only allow a set-off against the party to* the record, and the party in interest, but against every party throuigh whose hands it has passed." This was after the revision of the statutes which defined the circumstances under which a set-off might be made in an action on a promissory note overdue, but the court said that the right existed before as well as after the revision. In the case of Farringtonv. The Park Bank, 39 Barb. 645, though it involved no question of set-off, and though it differs in essential points from the case at bar, yet the rights of the holder for value of a promissory note overdue and dishonored, were discussed and considered. The court say, p. 651: "The holder takes it in the light of an assignee from the person from whom he receives it, rather than an endorsee according to the usage of trade, and he therefore takes just such title, and no other, as his a3signor had to it at the time of the tranrsfer."" There are numerous cases in Massachusetts. Holland v. Make- peace, 8 Mass. 418, was an action on two cheeks, brought by an assignee. The defendant claimed to set off a note which he had purchased against the payee of the checks, and wh'eh he held when the checks were transferred to the plaintiff. The decision was that the note could not be 'set off, and the reasoning of the court supports the doe'trine that set-offs are confined to the parties in the suit. In a subsequent case, Peabody v. Peters, 5 Pick. 1,, FITCH v. GATES., 33. the same court seemed to recognise as law, that filing an account. in set-off is a remedy that exists only inter parties to the contract. In the case of Sargent v. Southgate, 5 Pick. 812, a different conclusion was arrived at by the same court. That was an action brought by the endorsee of an overdue promissory note, and the defendant was alldwed to set off a negotiable note made to him by the payee, and held by the defendant before the transfer of the note in suit. PARKER, C. J., in giving the opinion of the court says: "It is. true that the statute of set-off contemplated mutual demands between the same parties; but the common law or law merchant treats the -holder of a promissory note, which was dishonored when he took it, as the party to the contract for all purposes of defence, when he shall put his note in suit." This case was decided on full consideration, and has ever since been followed in Massachusetts. In Ranger v. Cary, 1 Mete. 875, in Baxter v. Little, 6 Mete. 7, and in Bond v. Fitzpatrick, 4 Gray 89, the court recognised the correctness of this decision, notwithstanding the different decisions in England under a similar statute. In Vinton v. King, -4 Allen 565, METCALF, J., in summing up the defences available against the endorsee of a promissory note, among others enume- rates "a legal set-off against him [the payee] to the amount thereof." The statutes of Massachusetts, as revised after the decision of Sargent v. Southgate,.were changed in their phraseology apparently rather to make their provisions clear and specific, and "in conformity with that decision, than to enact a new law. In New Hampshire, in Woods v. Carlisle, 6 N. Hamp. 27, the Supreme Court of that state say :-" We are inclined to think that when a man takes a discredited note, and sues in his own name, when the defendant has a set-off against the endorser, the endorser must be considered the plaintiff within the meaning of the statute. The endorsee stands in the place of the endorser." The contrary of this doctrine was soon after expressly held by the same court in the case of Chandler v. Drew, 6 N. Hamp. 469. That was an action by the endorsee of a discredited promissory note against the maker, and it was held that a set-off against the endorser could nof be made. The court say :- "The endorsee cannot be considered as standing in the place of the endorser, unless the note can be considered as still due to the endorser, or the endorsee, by taking the discredited note, as having made the set-off his own VOL. XXIL-3 FITCH v. GATES. debt, either of which is repugnant to common sense." The opinion of the court is very elaborate; the New York and Massachu- setts cases, O'Callaghan v. Johnson, Ford v. Stewart, and Sargent v. Southgate, are examined, and the grounds on which they rest pronounced unsound and unsatisfactory. This case of Chandler v. Drew has been sustained in New Hampshire by more recent cases. See Jenness v. Bean, 10 N. Hamp. 267, and Williams v. Little, 11 N. Hamp. 72. In .eDuffie v. Dame, 11 N. Hamp. 244, the court say that the case of Chandler v. Drew is opposed to the prevailing doctrine in other states, and that it should not be extended beyond its precise limits. In Odiorne v. Woodman, 39 N. Hamp. 545, the court recognise the right of set-off, under certain circumstances, of a claim against the endorser, though the action be by the endorsee. The Supreme Court of Maine, in the case of Shirley v. Ford, 9 Greenlf. 83, recognised the right of set-off by defendant against the endorsee of a dishonored bill, of a claim against the payee. In Ward v. Warren, 19 Maine 23, the case of Sargent v. South- gate is referred to as sound law. A general examination of the decisions of our sister states, and. the courts of the United States, would be entering upon wilds im- measurably spread, already quite too lengthened. To reduce them to order, and extract from them any uniform principle, would be quite impossible. We forbear; we should but lose ourselves in. the mazes of legal uncertainty. "Whether under our statute a set-off can be made," said WILLIAMS, J., in giving the opinion of the court in Stedman v. Jill8on, 10 Conn. 50, "in a case where the plaintiff sues in his own right, and the debt is against another person, not a party to the record * * * * no opinion is ex- pressed; on that question learned judges have widely differed." These differences have been vastly multiplied in the forty years nearly since this opinion was pronounced. Perceiving, as we do, other grounds, to us abundantly satisfac- tory, on which to rest our judgment, we shall pass over without deciding, this vexed question of set-off, and thus avoid adding another to the too long list of conflicting decisions. The arrangement for a settlement and set-off had been so far completed in this case, between John Fitch and the defendant, that a court of equity would readily have enforced it. The parties had, in effect, agreed as to the mode of paying this note; the PITCH v. GALES plaintiff had actual knowledge of each and every fact connectedi with that agreement, and which, in a manner, attached to the note itself before he took it. It would be unjust and inequitable that the defendant should now be compelled to pay this plaintiff, when it seems more than probable that he will lose his claim against John Fitch, which is' the larger in amount. True, there is no finding that he is insolvent, but the fact that this debt has been in execution for more than a year, and has not been paid, shows clearly either an .inability, or an indisposition, on his part, to make payment. That the execution has not been levied and collected, raises a violent presumption, that if the debtor have means of payment, those means are quite beyond the reach of legal process. In view of all the facts, this plaintiff is not the equitable and bond fide owner of this note, and therefore cannot recover. The instrument on which the action is brought was not made negotiable by the parties, and though the statute authorizes another than the original party now to sue, we cannot presume that there was any intention by that change of the law, to affect or impair an equitable right. We advise the Court of Common Pleas to render judgment for the defendant. In this opinion the other judges concurred.

The foregoing case discusses a ques- The general rule of law, that the en- tion of considerable practical importance, dorsee of an overdue note or bill, takes and which has not always received the it subject to all existing equities, is, so attention from law writers, which it far as we know, universally recognised would seem to demand. We had occa- in England and America. But a mere sion to investigate it at an early day, counter claim of the maker, or acceptor, Britton v. Bishop, 11 Vt. 70, and then against the payee, does not amount to came to the conclusion, that the doctrine such an equity, unless it grew out of the of the English law was contained in note transaction, being a portion or all Burrough v. Moss, 10 B. &C. 558. The of the consideration, or unless there ex- court there reached the conclusion, that isted, before the transfer of the note, some the endorsee of an overdue negotiable understanding between the maker, or ac- promissory note, is liable to meet all the ceptor, and the payee, that the counter equities growing outof the note transaction claim should apply upon the note. itself, and to apply upon the note. any A mere set-off can only be pleaded at counter demands on the part of the law by the defendant, as against the maker, against the payee of the note, plaintiff on the record. The cases cited when there was an agreement, either ex- in the principal case abundantly show press or implied, to that effect. That', this. And there are numerous others rule will evidently justify the decision in of the same character. And the exist- the principal case. ence of a purpose on the part of the de- ROONEY v. SOULE.

fendant to rely upon a counter clai n the actual transfer of the note or bill : against the payee, in defence of an over- Baxter -v. Little, 6 Met. 7 ; Sargent v. due note or bill, and even the giving of Southqate, 5 Pick. 312. And these cases notice to the payee of such purpose, on the have been recognised in some of the part of the maker, will not preclude the other states, as appears in the opinion payee from assigning the note or bill, in in the principal case. But, in the main, order to evade such set-off, unless he has, we think the English rule, as before either expressly or by legal implication, stated, is adopted in the "Ameri~an states. assented to such set-off. This was so Equity might possibly interfere where held in Oulds v. Harrison, 10 Exch. 572. the assignee knew of the existence of a The Massachusetts cases, under the claim in set-off at the time of his pur- equity of their statute, allow counter chase and also of the insolvency of the claims on the part of the maker in such payee, and that the effect of the transfer cases to be pleaded in set-off against the must be to defraud the maker. endorsee, provided they existed before I. F. R.

Supreme Judicial Court qf Vermont. ROONEY, GUARDIAN OF RYAN, v. SOULE. The orator alleged in his bill that R., his ward, was the owner of a farm in F., and had a homestead therein, and that he was adjudged a bankrupt, and the defendant appointed his assignee, and that said homestead was decreed to R. by the Court of Bankruptcy ; that R. absconded, and the orator was appointed'his guardian ; that the defendant thereafterwards obtained judgment by default against R., before a justice of the peace, without the service of process, notice, or recognisance for review, and levied his'execution upon, and set off, said homestead ; that it was the duty of the orator, as such guardian, to sell said homestead for the support of R.'s family, but that said levy and set-off hindered and impeded his selling the same, and constituted a cloud upon the title thereof; and prayed that said cloud be removed. The answer averred that the Court of Bankruptcy adjudged that R. had a homestead interest in said farm; that the defendant's claim upon which said judgment was founded, was anterior to the acquisition of said homestead, and that said homestead was not exempt from said levy and set-off. The case was heard on bill and answer. Held, that the case was not one for the interposition of a court of equity. APPEAL from the Court of Chancery. The case sufficiently appears from the opinion, except that the bill alleged that it was necessary for the orator, in the due performance of his duty as guardian, to sell his ward's said homestead interest for the -support of the family of his said wara, and that the levy and set-off on the d*efendant's execution, and the record thereof in the town- clerk's office, constituted a cloud upon the title of said homestead, and greatly hindered and impeded the orator in selling the same. ROONEY v. SOULE.

The court, RoYce, Chancellor, dismissed the bill. Appeal by the orator. JBenton &.irish, for the oratpr.-The bill presents several grdunds of equity jurisdiction. It claims that the judgment was irregularly obtained. It is true this would have been grourid for audita querela, which is a statutory remedy, like the special petition for a new trial on the ground of fraud, accident or mistake. But it has been held that such remedies are cumulative, and do not extinguish the remedies previously existing: Alexander v. Abbott, 21 Vt. 476. In the early history of equity jurisprudence, and before the day of the writ of audita querela, such irregularities were a well recognised and very common ground of equity jurisdiction. But, be this as it may, the case shows other and very clear grounds of equity jurisdiction. The bill shows that the orator, as guardian, is obliged to sell this property for the support of the children of his ward, and that he cannot make the sale with this levy outstanding. This levy, then, constitutes a cloud upon the orator's title, which works him an injury. On this ground, he has a well recognised ground of relief in chancery to remove that cloud: .Hodges v. Griggs et al., 21 Vt. 280, 282; Eldridge T. Smith et aL, 24 Vt. 484; Hilliard Injunct. 304, 550; Eingland Y. Lewis, 26 Cal. 357. Another ground might be, to prevent multiplicity of suits. -. H. Mcntyre, for the defenaant. The opinion of the court was delivered by REDFIELD, J.-The orator alleges in his bill that his ward, Wil- liam I. Ryan, was the owner of a farm in Fairfield, and had a homestead interest therein; that he was adjudged a bankrupt by the District Court of the United States for Vermont; that the defendant was duly appointed assignee of his assets, and that a homestead was decreed to said Ryan by said court; that Ryan absconded, and that the orator was appointed his guardian ; after which the defendant obtained judgment without service of process, or notice or recognisance for review, before a justice of the peace, against said Ryan, and levied his execution and set off said homestead. The answer avers that the District Court adjudged that Ryan had a homestead interest in said premises; that the defendant's claim. upon which he obtained said judgment, was anterior to the acquisition of said homestead; that said homestead was not exempt ROONEY v. SOULE.

from his execution and levy, and that his judgment was regular and valid. The case was submitted on bill and answer. I. This is a bill quia timet, to remove a cloud from the plaintiff's title to a parcel of land. Another cloud, somewhat dense, seems now to have enveloped the title, by a decree of foreclosure which .has become absolute against both parties. And as this is averred and relied upon in the answer, it shquld operate, at least, as a disclaimer of title on the part of the defendant. It is doubtful, upon the averments in the bill and answer, whether Ryan had an absolute and entire homestead. Homesteads, under our statute, may exist sub modo, subject to certain debts, or mortgage-liens. Whether it is not the province and duty of the bankrupt court to marshal the assets of the bankrupt, and determiie priorities of right and lien, or what has been done as to this property by that court, is not made very clear in proof or argument. But we think this not a case for the interposition of a court of equity. There is no fund locked up awaiting the determination of title, as in Hodges v. Griggs, 21 Vt. 280, and the court, in that case, directed the parties to implead at law. There is no averment that makes this an exception to the common case where one party claims to be the true owner of land, and alleges that another claims it without valid title. The jurisdiction of courts of law and of equity is not concurrent in this class of cases, leaving a party his election in which forum he will have his rights determined. But courts of equity will, in their discretion,in exceptional cases, interpose to prevent fraud and wrong. Where one holds the apparent title, but it is invalid in the hands of those who have notice of the equities of another, and there is reason to apprehend he will convey it to an innocent purchaser, a court of equity will interfere to restrain a party from such threatened act; for otherwise it would work a fraud to an innocent party. But when the title asserted is all of record, and its infirmities can be exposed at all times, and against all persons, a court of equity will not interfere, but leave the party to his remedy at law-the forum provided for settling such issues of fact. Such is the general current of the authorities: Van Doren v. Mfayor of New York, 9 Paige 388; Mallory v. Dougherty, 16 Wis. 267 ; Munson v. Munson, 28 Conn. 582; 1 Story's Eq. Juris. § 700 a, and note; Woodman v. Sals- tonstall, 7 Cush. 181; Blaekcmore v. Von Vleet, 11 Mich. 252. In Wing, Adm'r v. Hall J Darling, 44 Vt. 118, WHEEL-ERB ROONEY v. SOULE.

J., says: "The relief in such cases is granted, not as a matter of right that the party seeking it has, but as a matter of discretion that the court may or may not exercise, as appears fit." That discretion is not arbitrary, but judicial, and is to be exercised in exceptional cases where the remedy at law is inadequate, and delay dangerous; or some other ingredient is shown requiring the effectual powers of equity jurisdiction to prevent fraud and injustice. If the defendant's judgmient, execution and levy are void, their in- firmity is apparent upon the records, which are fixed, and will remain; and when the defendant attempts to oust the orator by asserting the validity of his judgment and set-off, there would seem little danger, and the orator could readily show their invalidity. But if a party who distrusts his own title and fears that of another, may, at his election, and as an experiment, drag into a court of equity all persons who may have some claim or title to the premises, and thus occupy the court in canvassing titles and de- termining rights that were never asserted, it would be perverting a rery salutary rule of equity law to needless and mischievous ends. The inquiry into title to lands, has a special fitness to trial by jury; and we think that litigation would be abridged, and public justice subserved, by adhering to a just and salutary rule of law, rather than perverting it to new experiments. The decree of the Court of Chancery dismissing the orator's bill, -is affirmed, and the cause is remanded. The foregoing opinion is upon an im- cellor declared to be most unquestion- portant practical question in equity law, able, in all cases of outstanding con- and the opinion of the court seem4 to tracts, which might, in any way, operate be strictly in accordance with established as a cloud upon the title of other pro- principles. perty owners, whether such contracts The limits of the jurisdiction of courts were void at law or not, and whether of equity upon the subject of the can- the defect in the contract appeared upon cellation of outstanding contracts, and the face of it, or not. The words of the particular instances in which the that eminent judge will afford the best jurisdiction might be invoked, seems to commentary upon the law we could have been, at an early day, for a long present. He said: time, in more or less doubt. But the U While I assert the authority of the jurisdiction is now fully established. court to sustain such bills, I am not to The case of Hamilton v. Cummings, 1 be understood as encouraging applica- Johns. Ch. 517, reviews all the cases, to tions, when the fitness of the exercise the date of the decision, as was the prac- of the power of the court is not pretty tice of Chancellor KENT, with the view strongly displayed. Perhaps the eases of defining the exact boundaries of the may all be reconciled on the general jurisdiction, which the learned Chan- principle, that the exercise of this power ROONEY v. SOULE. is to be regulated by sound discretion, Eenniston, 47 N. I. 267, and the cases as the circumstances of the individual extensively reviewed by the late Chief case may dictate ; and that the resort to Justice BELLOWS. equity, to be sustained, must be expe- Mr. Justice STonR, in his Equity dient, either because the instrument is Jurisprudence, defines the jurisdiction liable to abuse from its negotiable na- much in the same terms as before stated ture, or because the defence not arising by Chancellor KENT, Vol. 1. p. 700, on its face, may be difficult or uncertain 439, 694, 700, 705. In some of the at law, or from some other special circum- cases the c6urts of equity have inter- stances peculiar to the case, and render- fered in, advance to prevent the defend- ing a resort here highly proper, and ant from creating a cloud upon title: clear of all suspicion of any design to Tucker v. Keniston, supra; Pellett v. promote expense and litigation. If, Shepherd, 5 Paige 493. The jurisdic- however, the defect appears on the bond tion is also recognised in Lounsbury v. itself, the interference of this court will Purdy, 18 N. Y. 515; Dean v. Madison, still depend on a question of expediency, 9 Wis.1 482; Kimberlyq v. Fox, 27 and not on a question of jurisdiction. Conn. 807. So that there can remain It may, sometimes, become essential tb no question of its being well established the perfect and tranquil enjoyment of in all the equity courts of this country private right, that this most important and in England. branch of equity power should be ex- The only question which can ever ercised in the one case as well as in the exist in any such case, after the leading other, and it 'may bh here observed, facts are established, of the existence that in the case of Law v. Law, Cases of a colorable cloud upon the plaintifPs t. Talbot 140, the whole consideration title, Will be, whether the particular was spread out upon the bonds, and yet circumstances demand the interference he [the Chancellor' cancelled the bond of a court of equity. It must be obvi- without sending the parties to law." ous to ail, that the question, as suggested The doctrine has been maintained in in the opinion, will have to be carefully. mast of the American states, and is weighed, in every such case-whether thoroughly well established upon the the case is an exceptional oie, calling basis of. Hamilton v. Cummings, supra. for the exercise of the power of a court Thus in Massachusetts it is recognised of equity to prevent fraud and injustice, in Piercev. Lamson, 8 Allen 60 ; Alfar- and whre the remedy at law is likely tin v. Graves, Id. 601 ; in both of which to be delayed so long that there might cases the instruments set aside, had .been be danger of the evidence being lost, or fraudulently obtained, and might therein some way irremediable wrong inter- fore have been defended at law. Clous- vene. 'nless there appears some very ton v. Shearer, 99 Mass. 209, was the special and exceptional demand for the case of an outstanding mortgage, and interference of a court of equity, it Sullivan v. Finnigan, 101 Mass. 447, should be denied in all such cases. was the case of a forged deed, in both Any other rule would but invite the of which the defence was equally avail- transfer of the trial of all cases affect- able at law. The question is somewhat ing the title of land, from the courts of discussed by WooDnuFF, J., in Wil- commons law to those of equity; thus liams v. Ktzhugh, 37 N. Y. 444, in re- rendering the two jurisdictions concur- gard'to contracts void for usury : Woe rent in all such cases, which no court T. Savage, 10 Paige 583. The question has ever maintained. I. F. R. is very fully presented in Tucker v. BAXTER v. ROBERTS.

supreme Court of California. BAXTER v. ROBERTS. B., who was a carpenter, was employed by R. to go in a boat, upon a submerged lot owned by him; and ao certain work of his trade. While there at work, a shot was fired from a house on an adjacent lot, which wounded B., hence his action for damages. It appeared that R. knew his possession of the lot was resisted and a resort to arms was immine'nt at any moment. He did not inform B. of this fact, and the latter had no reason to believe lie was going into danger when employed to do the work. Held: R. was liable. The risk B. legally agreed to take was such as was necessarily incident to his employment. It. could have relieved himself of responsibility by informing B. of the facts of the danger. The concealment of facts, or the failure to state them by employer to employee, which would tend to expose any hidden and unusual danger to be encountered in the course of the employment, to a degree beyond that which the employment fairly imports, renders the employer liable for injuries rejulting therefrom to the employee. Tais was an action brought by Baxter, a carpenter by occupation, to recover damages for certain injuries sustained by reason of a gunshot wound received by him at the hands of some unknown party. Roberts was the owner of. a certain lot in San Francisco, covered by water, and lying upon the southerly side of Seventh street, and which had been enclosed by him with a fence, and he employed the plaintiff to go with him upon these premises and perform labor there as a carpenter. Upon reaching the lot in a boat, the plaintiff and another employee in company with the defendant commenced to tear away some boards from a fence newly erected thereon, and which ran across -the northerly corner of the lot to Seventh street, when the party were fired upon from a house or shanty situate upon a neighboring lot to the west of Roberts's lot, and the plaintiff was shot through the joint of the left shoulder with a rifle-ball, which carried away portions of the bone, causing him great physical suffering, and, in the opinion of his medical attendant, maiming him for life. The opinion of the court was delivered by WALLACE, C. J.-The evidence upon the part of the plaintiff tended to show, and the verdict of the jury upon the issues joined, must be considered to have found the fact to be, that when the defendant engaged the services of the plaintiff to work upon these premises and took him there in the boat for the purpose of per- BAXTER v. ROBERTS.

forming the labor, the defendant knew or had information such as would reasonably lead him to believe that his interference with the newly erected fence would be forcibly resisted by certain other parties who had erected it and claimed to be in its possession, and who actually occupied the shanty already referred to with loaded firearms, within shooting range of this fence, and who had an- nounced to the defendant their purpose to resist by force any interference therewith. The verdict must be considered, too, to have found that such knowledge, belief or information as the defendant possessed upon these matters was not communicated to, but was withheld by him from the plaintiff, who went to the performance of the work in ignorance and without the apprehension or suspicion that in going, he was incurring any personal danger or hazard. The learned judge of the court below stated to the jury that "the turning-point in this case is the charge that the defendant, Roberts, employed the plaintiff, Baxter, to perform a service which he, Roberts, knew to be perilous, without giving Baxter any notice of its perilous character ;" and instructed them as follows:- "If Roberts knew or if he had good reason to believe that rigid or forcible resistance would be offered to him and his party by parties whom he knew or believed to be there, on the ground or in the vicinity near by, it was his duty to inform Baxter of the nature of the employment, to disclose that knowledge so that Baxter might act understandingly and take the chances if he chose to do so. If Roberts had such knowledge and concealed it from the plaintiff, then he is liable. "If you find the persons shooting had any adverse possession or occupation, whether complete or otherwise, at the time of the shooting, and the defendant knew the fact, and if you further find that the defendant had knowledge that such possession would be maintained by force if interfered with by him by the taking of the ' new fence' so called, and concealed such knowledge from the plaintiff, and failed to inform him of the danger of the employment, he must be held liable in damages, and you should find a verdict for the plaintiff." That one contracting to perform labor or render service thereby takes upon himself such risks and only such as are necessarily and usually incident to the employment, is well settled. Nor is there any doubt that if the employer have knowledge or information BAXTER v. ROBERTS. showing that the particular employment is from extraneous causes known to him to be hazardous or dangerous to a degree beyond that which it fairly imports, or is understood by the employee to be, he is bound to inform the latter of the fact or put him in possession of such information; these general principles of law are elementary and firmly established. They are usually applied to cases in which the employee has sustained injury by reason of some defect or unsoundness in the machinery or materials unknown to him, about which he is employed to perform labor, and of which the employer knew, or might have known, in the exercise of ordinary care and vigilance on his part. "The general principle which forbids the employer to expose the employee to unusual risks in the course of his employment, and to conceal from him the fact of such danger, is not affected by the fact that the danger known to the employer arose from the tortious or felonious purposes or de- signs of third persons acting in hostility to the interests of the employer and through agencies beyond his control. The employee is as clearly entitled to information of such known danger of that character as of any other the'existence of which is known to the employer. The employer, if he knew or was informed of a threatened danger of that character, was bound to communicate the information to his employee about to be exposed to it in the course of his employment and in ignorance of its existence. The nature or character of theagency or means through which the aanger of injury to the employee is to be apprehended can make no difference in the rule, for the employee is entitled in all cases to such information upon the subject as the employer may possess, and this with a view to enable him to determine for himself if, at the proffered compensation, he be willing to assume the risk and incur the hazard of the business; and if the employer has such information or knowledge and withholds it from the employee, and the latter afterwards be injured in consequence thereof, the employer is liable to him in damages therefor. Judgment affirmed.

I. For one to lead anotherto expose him- fallendi causb. obscure loquitur sed etiam self to a dangeror loss known to theformer qui insidiose vel obscure dissimalat. and unknown to the latter, whereby the Cicero De Officiis, B. 3, ch. 12 &13.- latter is injured, is a tortfor which action "To be silent is one thing, concealment will lie. is another. You may be silent respect- Dig. p. 43, J 2 (De Dole 1alo).- ing facts within your knowledge, with- Dolus malus non tantum in ea est qul out being guilty of concealment. You BAXTER v. ROBERTS. are guilty of it when the motive of your See Barry v. Croskey, 2 Johns. & silence i; a wish that others for your ad- Henning 1, for a statement by V. C. vantage should be ignorant of facts (since Lord HATIJERLEY) of general which you know, and which it is for principles as to what constitutes misrep- their interest that they should know." resentation and the liability for it. For Ohviously too broad a statement and authorities on general point above see one to which the author is by no means Smith v. Dobson, 3 M. & G. 82. fitithful. Contributory negligence is an obvious Com. Dig. "1Action on the case for exception to above principle, and in our dcceipt," A. 1. "An action upon the jurisprudence bars all recovery on plain- case for a deccipt lies when a man does tiff's part : vide for some qualifications to any dcceipt to the damage of another." this last, Bridge v. Grand Junction R. In C'hapman v. Pickersgill, 2 Wils. R. Co., 3 i. & W. 248: and Lynch v. 145, where case was held to lie for Nurdin, I Ad. & El. N. S. 29, per DEN- maliciously suing out a writ of bank- MAN, C. J., for cases where trespasser ruptcy, WILMOT, C. J., said: " It is recovered for injury done him by de- said this action was never brought, and fendant (the ground seems to be that so it was said in Ashby v. Mhite. I wish the plaintiff's wrong as compared with never to hear this objection again. This defendant's was relatively naught, and action is for a tort ; torts are infinitely that to it the term "contributory" could various, not limited or confined, for not rightly be applied): and where there is nothing in nature but may be an plaintiff ignorantly contributing to his instrument of mischief." own injury was also allowed to recover. As to cases where recovery is rested See Taff v., ll~arman, 2 C. B. N. S. on defendant's duty apart from contract, (89 E. C. L.) p. 739, for dictum as to vide Marshall v. R. IV., 11 C. B. 655, cases where a wrong-doer may recover. opinions of Jznvis, C. J., and WiL- Southcote v. Stanley, 1 H. & N. 247. LIArS, J. ; Burrows v. Gas Co., infra Plaintiff came as a mere visitor to p. 48; vide also 7 Am. L. R. 660-1. defendant's hotel, and on leaving opened In Baiy v. .Merrell, 3 Bulstrode a door to go out from which a piece 95, it is said : "Fraud without damage of glass fell and hurt him. ])eclaration and damage without fraud gives no cause alleged carelessness, negligence and de- of action, bat where these two do both fault, &c,, on defendant's part. BRAx- concur and meet together there an action WELL, B., rested his opinion on the lieth,'' &e. ground of there being no commis- Cushing's Strahan's Domat, Part I. sion, but merely omission alleged on Book I. Tit. VIII., See. IV. Art. IX., defendant's part; that declaration did p. 620. "When any loss or damage not show want of reasonable care, happens from an accident, and when the and that therefore plaintiff could not act of some person which is mixed with recover. A distinction was taken be- the accident has been either the cause or tween a visitor invited to a bou-e and occasion of the said event, it is by the one coming into a shop on business as nature of the act and by the connection against the former. John V. Bacon, L. which it may have with what has hap- R. 5 C. P. 437: Defendant was a car- pened that we ought to judge whether rier of passengers. Plaintiff, such pas- the said person should be made to an- senger, fell down a hatchway in hulk swer for the damage, or should be ac- which was carrying him to steamer; al- quitted of it." lowed to recover. BRETT, J., remarked: T'ide Keegan v. R. R., 4 Seldun 178-9, "I doubt whether any invitation which for cases under the general point I. does not amount to a contract or to a BAXTER '. ROBERTS. false and fraudulent misrepresentation responsible in damages for all injuries can be the foundation of legal liability. arising from causes which he might have If the contract of carriage in this case foreseen and obviated * * * * all risks did not cover the hulk, I should doubt which can be said to arise from his rash- very much whether the defendant was ness, carelessness or neglect, and not liable." Vida Indermaur v. Dames, properly to be incident to the contract. infra. On the other hand, if the servant hl'i 11. A condition implied in every contract just as good opportunity of making him- of employment is that employee shall not be self aware of the danger as the master," exposed to any risk which he cannot gener- &a. ally foresee, as for example, such as are Cushing's Strahan's Domat, l'art I. not ordinarilyincident to the employment. Book I. Tit. XV. Sec. IL Art. VI. if the employer knows or has it in his pow- (p. 471). "If a proxy or agent suffers er to know of such risk, a concealment of any loss or damage on account of the it is a breach of contract, and if the in- affair which he has taken in hand, we jury ensue, actions both in tort and con- must judge by the circumstances whether tract will lie. the loss ought to fall on the proxy or Kee.qan v. Railroad, 4 Selden 178-9; on the person whose affair he manages; lirydon v. Stewart, 2 MacQueen 30. which will depend on the quality of the Negligence of fellow-servant is regarded order which was to be executed, the as an ordinary risk, incident to the em- danger if any-the nature of the event ployment. which has occasioned the loss-the con- Daties v. England, 33 Law J. Q. B. nection between the event and the order 321. Eroployer gave employee diseased that was executed-the relation which beef to cut up, whereby latter was injured. the thing lost or the damage sustained had Action held to lie. to the affair which was the occasion of Patersonv. Wallace, 1 MacQueen 751. it, &c., and on the circumstances which " When a master employs a servant in may charge the one or the other with a work of a dangerous character he is the loss or discharge them of it. As to bound to all reasonable precaution for which we must cast into the balance the the safety of that workman." consideration of equity and the senti- Noges v. Smith, 28 Vt. 59. The ments of humanity which one ought master is bound to exercise care and to have whose interest has been the cause prudence that those in his employment or occasion of loss to another." be not exposed to unreasonable risks and Indermaurv. Dames, 2 Law Rep. C. dangers. P. 313, KELLY, (C.B). "If a person O'Byrne v. Burn, 16 See. Ser. 1025 occupying such premises (i. e. with shaft- (Scotch Case). Plaintiff, who was an holes in the different stories), enters into inexperienced employee, was injured in a contract in the fulfilment of which attending defendant's machinery. Held workmen must come on the premises to recover. Everything was in proper who probably do not know what is usual order, and the danger was to a degree in such places, and are unacquainted obvious ; but plaintiff should never have with the danger they are likely to incur, been put at such work. is he not bound either to put up some Fraser on Law of Scotland relative to fence or safe-guard about the hole, or if Master and Servant, p. 93: "The mas- he does not, to give such workmen a ter is bound to take all reasonable pre- reasonable notice that they must take cautions which ordinary prudence would care and avoid the danger ? I think the suggest, &e. The general rule appears law does impose such an obligation on to be that on the one hand the master is him. That view was taken in the judg- BAXTER v. ROBERTS. ment in the court below, where it is said tion of the implied contract of his em- (by WILLES, J.), 'With respect to ployer to provide for him a reasonably such a visitor at least we consider it safe place in which to do his work, and settled law that he, using reasonable care if through inattention to the danger he on his part for his own safety, is entitled meets with such an injury while doing to expect that the occupier shall on his his work, and sues his employer there- part use reasonable care to prevent for, the question whether he met with it damage from unusual danger which he with due care on his own part and by knows or ought to know; and that when reason of the neglect of his employer there is evidence of neglect the question to give him suitable notice of the danger, whether such reasonable care has been is for the jury." taken by notice, lighting, guarding or Riley v. Baxendale, 6 H. & N. 443. otherwise, &c., is matter of fact for the Held that from ordinary contract of ser- jury.' is vice, a stipulation that employer should Britton v. Great We stern Cotton Com- not expose employee to extraordinary pany, 41 L. J. Exch. 99. Defendants by risk could not be inferred. There might statute were required to fence a certain be a duty, but duty did not raise a con- wheel, which they failed to do. Plaintiff's tract. Plaintiff had no business, if em- intestate was killed by the wheel. Jury ployment was dangerous, to undertake it ; found that there was no contributory neg- and in this case he must have known ligence on decedent's part. Court held the danger quite as well as the master. that decedent by merely engaging upon Williams v. Clough, 3 H. & N. 258: the work, the danger of it not being Unsafe iladder of employer, defendant ; " obvious, was not "volens, and the plain- recovery because danger unknown to tiff on the verdict could recover. plaintiff. Wonder v. Baltimore, R. R. Priestly v. Fowler, 3 M. & W. 1. Co., 32 Md. 411: Dictum: Master must Master does not guarantee servant's not expose servant to extraordinary safety i. e. is not responsible for unknown risks. Mellors v. Shaw, 101 E. C. L. danger: is not bound to take more care (1 B. & S.), p. 437, for authorities on of the servant than he may be expected master's liability towards servant for to take of himself. See Lord ABINGER'S negligence. Peck v.. Neil, 3 McL. 22: opinion. In this case plaintiff must Action by stage passenger against neg- have known danger as well as master. ligent carrier; another stage not'be- Cooms v. New Bedford Co., 102 Mass. longing to defendant contributed to the 572. The extract from head-note given injury, 'recovery allowed; said the court, below contains all the law and facts of "Every omission of duty by the driver this case relevant to our purpose. For which in any degree increased the risk a full repertory'of cases bearing on the of the passengers, subjected the defend- point now under consideration, see ar- ant to damages for an injury done them. gument for plaintiff's counsel, pages That although the upsetting of the stage 577-80, and p. 595 ; see also opinion of may have been caused immediately by IIOAit and GRAT, JJ. the driver of the mail-stage" (the third Extract from head-note: "The fact party), "for which he and his employers that very near where a workman is were liable to damages, still, if Neil's voluntarily employed in a manufactory, (defendant's) driver under the circum- machinery not connected with his work stances did not use all the means which is in motion the dangerous nature of a skilful and prudent driver could and which is visible and constant, is not con- mould have used to prevent the injury clusive that he has taken on himself the done, the defendant is liable." risk of being injured by it in modifica- III. The contributory n'gligenre of a BAXTER v. ROBERTS. third person without which the defendant's plaintiff alleged was run too near barge negligencewould not have harmedtheplain- and too rapidly. Defence that a larger tiff, is no defence. There is no distinction steamer first caused the swell and defend- between the wilful and negligentfault of ant only increased it ; with a further plea such thirdperson. It is immaterialwhether of mismanagement on part of plaintiff's the risk comesfrom the dangerous condition servant. The Lord Chief Justice told of a material object into connection with the jury that the plaintiff was not en- which the employee is brought orfrom the titled to recover if, in their judgment, the dangerous acts of a third person. misconduct of the plaintiff's servants or In Lockhart v. Lictenthaler, 4 Am. the insufficient manning of the barge Law Reg. N. S. 15 (46 Penn. 158), contributed to the loss, or if the injury will be found a very full discussion was occasioned wholly by the Ramona of the point whether plaintiff, a passen- (the larger steamer). Verdict for ger, injured by the concurring negligence plaintiff, not disturbed on rule. ER- of his carrier and a third person, has any SKINE, J., said: "I also am of opinion action against third person. It will be that there is no ground for entering a seen that his action against carrier is verdict for defendant, and that verdict never questioned, nor is it suggested that found for plaintiff was right ; the jury the fault of third person would avail might well conclude from the evidence carrier as a defence. The court held that the defendant had either caused or only that no action lay against third contributed to the accident. Though the party; ind while some of the authorities swell occasioned by the Water-Lily " cited rested the ruling on identity of (defendant's steamer), "might not passenger with carrier, thought it a have sunk the barge if the water had principle of public policy to incite car- not been previously agitated by the Ra- riers to diligence and prudence; it will mona, still if the jury thought that the he seen that the cases on this question accident would not have occurred but for are quite at war. Besides cases cited the improper conduct of the defendant's in opinion see.Peck v. Neil, 3 McLean servants, the defendant was in strictness 23, and Brown v. R. R., 32 N. Y. 602, liable for the whole damage. Mott v. and Mooney v. R. R.; 5 Robertson (N. Hudson R. R., 8 Bosw. 345, concurrent Y.) 548. wrong of third person no defence to Lynch v. Nurdin, 1 Ad. & E. (N. S) defendants : Colegrove v. Harlem R. R., 29, 41 E. C. L. 426. Defendant left 6 Duer 382, and N. Y. 6- N. H. R. R., cart standing, a child led horse over 20 N. Y. 492, relied on. Defendant's plaintiff, another child.-Action lay. train cut hose of firemen trying to put DENMAN, C. J., says : "Between wil- out fire, which injured plaintiff's pro- ful mischief and gross negligence, the perty, held to be error to direct the boundary line is hard to trace, I should jury that if firemen were negligent in rather say impossible. The law runs not warning train, plaintiff could not them into each other, considering such recover. a degree of negligence as some proof Eaton v. Boston J- Lowell R. R., 11 of malice." This is applied to defend- Allen 505. Action of tort by passenger ant, and certainly to a still less degree against carrier for injury to person. could the distinction be taken in regard COLT, J.-" It is no answer to an action to wrong of the contributing third by a passenger against a carrier that the person. negligence or trespass of a third person Smith v. Dobson, I M. & G. 60. contributed to the injury. These propo- Plaintiff's barge was sunk by a swell sitions would be more manifest if this caused by the defendant's steamer, which action had been brought in form upon .BAXTER v. ROBERTS. the implied undertaking of the defend- not responsible for the workman's neg- ants, but the plaintiff may elect to sue ligence: "The defendants having been in tort or contract, and the rule of duty guilty of negligence by which the acci- is the same in either form of action: dent was caused, the plaintiff is entitled Warren v. Thtchburq R. R, 8 Allen to maintain his action to recover com- 227 ; Iagall v. Bills, 9 Met. I ; MrEl- pensation from the defendants for the roy v. Nashua 6- Lowell R. .R., 4 Cush. damage occasioned to his property." 400; Sullivan v. Philadelphia, 6-c., R. Says CIHANNELL, B.: "It does not R., 30 Penn. State R. 234. Even if no appear to me in the view I take, very privity of contract existed and the in- important whether this action should be jury was the result of the joint acts of considered as founded in contract or defendants and the owner of the load upon a duty. Whether it was the case of hay and the Eastern R. R. Co., it of a contract or of a duty, it seems to would furnish no defence to this action: me the defendants have failed in the for in actions of this description non- performance of it, and the consequence joinder of the defendants cannot be of such a failure was the damage com- availed of in bar. And this is true al- plained of." though the party contributing by his Says PIGOTT, B.: "It was argued negligence was acting without concert for the defendants that the damage was with and entirely independent of the too remote. Now the mere fact that defendants : Illidge v. Goodwin, 5 C. & there is another cause brought in with- P. 190. out which the damage would not have Burrows v. The AFarch Gas 4- Coke Co., occurred, does not in my view make the L. R. 5 Excb. 67, (affirmed L. R. 7 first and main cause a remote cause of Exch. 96). The defendants, a gas the damage; it can only disentitle the company, having contracted to supply plaintiff to recover in cases where the the plaintiff with a service-pipe from ground may be taken that he has con- their main to the meter on his pre- tributed that without which the damage mises, laid down a defective pipe from would not have occurred. It seems to which the gas escaped. A workman me that the escape of the gas was plainly in the employ of a gas-fitter engaged the proximate cause of the damage of by the plaintiff to lay down the pipes which the plaintiff complains. If that leading from the meter over the pre- be so, though there is another cause mises, negligently took a lighted can- without which the explosion would not dle for the purpose of finding out have happened, yet that does not disen- whence the escape proceeded. An ex- title the plaintiff from recovery, unless plosion then took place whereby damage he can be affected by the negligent con- was occasioned to the plaintiff's premises, duct of Sharratt" (the workman), " and to recover compensation for which the so must be taken to have contributed to plaintiff brought his action against the the damage. I do not think that the defendants. plaintiff is responsible, &c. As my Held, 1. That the damage was not too Lord has put it, there were two indepen- remote : dent contractors employed by the plain- 2. That the plaintiff not being mas- tiff to do work upon the premises. Both ter of the workman could not be consid- are guilty of negligence by which the ered as contributing to the damage by plaintiff sustains considerable damage. reason of his act : and Is the plaintiff disentitled to complain 3. Was therefore entitled to recover. of the negligence of one because the Says KELLY. C. B., after stating the other contributed to the damage ? It case and arguing that the plaintiff was seems to me he ought to be entitled to BAXTER v. ROBERTS.

complain of both and to he able to re - a driver of a third truck tried to pass be- cover against both. The fact that he it tween the two, and was not negligent in entitled to recover against one cannoi* so doing; he upset defendant's truck, deprive him of his right' to recovei whereby plaintiff was hurt. Action sus- against the other." tained citing Lynch v. Nurdin. Vandenburgh v. Truax, 4 Denio 465: : Danville Turnpike Co. v. Stewart, 2 Defendant having had a quarrel with a Mete. (Ken.) p. 122: Dictum: " Where boy in the street in a city, took up .a an injury is 'aaie by ntg!iger.ce of two pick-axe and followed him 'into* tlic persons; -tho falt. 9t:'one is. no excuse plaintiff's store whither he fled, and in for that of the other. Both in that case eudeavoring to keep out of defendaa,'.i are liablet tlv.party injured." reach the boy ran against and knocked MtleCahi. v. Kipr, 2 E. 1). Smith out the faucet from a cask of wine, by 413. Defendant left his horse standing; means of which a quantity of wine ran a third person frightened it so that it ran out and was wasted: held that the de- away and injured plaintiff. Action lay. fendant was liable to the plaintiff in Illidge v. Goodwin, 5 Carrington & P. damages. 190. Defendant left his cart unguarded; See also Ricker v. Frleeman, II Am. a hird person struck the horse so that Law Reg. N. S. 692. it backed into and broke plaintiff's win- In Guille v. Swan, 19 Johnson 381, dow. Action lay. the immediate actors in the wrong Mooney v. B. R., 5 Roberts (N. Y.) which was done to the plaintiff were 553. "Even a party," says ROBERT- moved by their sympathy for the defend- soN, J., "guilty of negligence himself ant, who had brought himself iuito a peril- is, in reference to the degree of care he ous condition by ascending in a balloon. is bound to use, entitled to rely on the The balloon descended into plaintiff's obligation of others to use ordinary garden, which was near where it had care to avoid the consequences of his gone up, and a crowd of people seeing negligence when threatened by it with the defendant hanging out of the car in an injury, and is exempted from liabil- great peril, rushed into the garden to ity for the effect of a failure by others relieve him, and in so doing trod down to discharge their duty in that respect." the plaintiff's vegetables and flowers. By the word "others" the learned For the wrong done by the crowd as judge appears to have referred not to wqll as for the injury done by himself, third persons but to plaintiffs guilty of the defendant was held answerable as a contributory negligence. trespasser. Although the ascent was IV. Where the attempt of the em- not illegal, it was a foolish act, and the ployer to have his work carried out is the defendant ought to have foreseen that contingency which determines the happening injurious consequences might follow. of the injury, the employment is causa The case seems not to have been put causans and not merely caus& sine qu- upon the ground of a concert of action non of the injury. between the defendant and the multitude, Greenland v. Chaplin, 5 Exch. 247. but on the ground that the defendant's Says PoLLocK, C. B. : "I am desirous descent, under such circumstances,would to be understood that I entertain con- ordinarily and naturally draw a crowd siderable doubt whether a person who is of people about him either from curios- guilty of negligence is responsible for ity," &c. all the consequences which may under Powell v. Deveny, 3 Cush. 300. De- any circumstances arise, and in respect fendant negligently left his truck in of mischief which could by no reason- the street ; another truck stood opposite: able person have been anticipated. VOL. XXII.-4